- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908 is di rected against the judgment and decree dated 09. 05. 2003, passed by learned District Judge, Almora, in Civil Appeal No. 04 of 2003, whereby the said ap peal was dismissed affirming the judg ment and decree dated 01. 06. 2001, passed by the trial court (Civil Judge (Junior Division), Ranikhet), in suit No. 06 of 1998. The trial court had dis missed the suit of the plaintiff for spe cific performance of contract.
(2.) HEARD learned counsel for the par ties and perused the record. Brief facts of the case are that the plaintiff/appellant instituted suit No. 06 of 1998, against the defendant/respondent-Laxman Singh, pleading that the defendant had a land situated in Vil lage Kidai, Patti Nakuri, Tehsil and Dis trict Bageshwar, in respect of which he (defendant) had applied for mining lease/prospecting licence. But the defendant was financially weak and had no expe rience of mining work. Therefore, on 09. 07. 1993, he entered into a contract with plaintiff Gopal Mehrotra, at Ranikhet whereby the plaintiff agreed to bear all the financial expenses on the condition that the prospecting licence/mining lease, on being granted to the defendant, would be transferred to the plaintiff. It is further pleaded by the plaintiff in the plaint that out of total amount of consideration of Rs. 25, 000/-, an amount of Rs. 5, 000/- was paid in advance to the defendant and later in two instalments of Rs. 15, 000/- further payment was made. The plaintiff has further pleaded that in obtaining the prospecting licence in favour of the de fendant, plaintiff had to spend Rs. 72. 500/ -. But when the prospecting li cence was granted to the defendant on 14. 09. 1994, which was registered on 02. 06. 1995, with Sub- Registrar, Bageshwar, the defendant refused to transfer the licence to the plaintiff. Hence the suit for specific performance of contract was filed by the plaintiff against the defendant. The defendant did not contest the suit before the trial court and suit pro ceeded ex-parte. The trial court after hearing the plaintiff and going through the evidence, adduced by him found that the suit cannot be decreed, as prayed by the plaintiff for the reason that the original agreement entered between par ties was not produced in the court, and secondary evidence was not admissible in view of the provision contained in Sec tion 64 read with Section 65 of Indian Evidence Act, 1872.
(3.) AGGRIEVED by said judgment and decree dated 01. 06. 2001, passed by the trial court, the plaintiff filed civil appeal (No. 04 of 2003) before the District Judge, Almora. However, said court af ter hearing the parties, dismissed the appeal not only on the ground that the secondary evidence was inadmissible but also on the ground that prospecting li cence/mining lease, granted by the Gov ernment to the defendant was non trans ferable licence and an agreement against the law cannot be enforced. This Second Appeal was admit ted on 01. 06. 2007, on following ques tion of law, suggested in the memoran dum of appeal : Whether decree of specific perform ance of the agreement can be passed in favour of the plaintiff, against the defendant, to get the prospecting li cence/mining lease, transfer to the plaintiff within such time, as the court may grant? Earlier vide order dated 23. 06. 2008, this second appeal was allowed, but on application, moved under Order 41 Rule 21 of Code of Civil Proce dure, 1908, the said order was re called. And matter heard afresh.;